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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

Case number: 1750/2016

In the matter between:

DANIEL MASASANYA                                                                 PLAINTIFF

And

MINISTER OF POLICE                                                                 DEFENDANT

JUDGMENT

Matlapeng AJ

[1]        On 29 April 2016 an armed robbery took place at Aspidas Wholesalers in Madibogo Pan. Constable Bareki, a detective in the South African Police Service was contacted telephonically by his station commander to attend to this complaint. He made haste to the scene and upon arrival, he was given a report that three men alighted from a motor vehicle driven by the fourth one. A description of the motor vehicle that the suspects used was also provided to him. He was informed that it was a white Toyota RunX with no registration plate at the back.

[2]        Constable Bareki drove around Madibogo Pan in search of this motor vehicle. He received information that the motor vehicle fitting the description had parked between the buses near a school and later drove off towards Madibogo and had given a lift to four people who were hitch hiking. He drove towards Madibogo and saw a white Toyota motor vehicle with no registration plate at the back. This was a Toyota Auris. He called the complainant and informed that the motor vehicle that he is following is an Auris and asked the complainant as to whether he did not make a mistake about the make of the motor vehicle.

[3]        The complainant confirmed that maybe he made a mistake in that regard. As fate would have it, this motor vehicle that he was following had to pass near Madibogo police station. Constable Bareki phoned his station commander with a request that this motor vehicle should be stopped at the police station. This was duly done. In this motor vehicle was the plaintiff, Mr Daniel Masasanya, who was also the driver. There were passengers comprising an adult male, a female and a child.

[4]        Bareki conducted a search in the motor vehicle and nothing untowards was found. He then started questioning the plaintiff. The plaintiff initially informed him that he was from Thutlwane where he had gone to check the grave of his deceased child with the view of erecting a tombstone. Upon being confronted that the road he was using was not from Thutlwane as Thutlwane is on the side of Setlagole, he changed tack and said that he was from Mafikeng, gave a lift to some people who hijacked him using a firearm. Still the story did not hold water as he was confronted with the fact that he was about to pass the police station and he did not enter to lay a complaint with the police. The story changed again and he stated that he was hired by Mpho and Alaska to transport them to Madibogo Pan. He just dropped them at the shop as he did not know what is it that they were going to do. Bareki upon hearing these three inconsistent stories, informed the plaintiff that they should go inside the police station for further interview. After the interview, Bareki decided to arrest and detain the plaintiff for armed robbery with aggravating circumstances.

[5]        Meanwhile, the members of the community searched and managed to find one of the alleged robbers who was armed with a firearm. They gave chase and this person ran towards a stream where he apparently hid the firearm in the water. He was also apprehended and the firearm retrieved. This person and the plaintiff were charged with robbery. They appeared in court and the plaintiff was released on bail. After several appearances in court, the case against the plaintiff was withdrawn as the ballistic report delayed. After this withdrawal, the plaintiff instituted the current proceedings against Minister of Police in his representative capacity for “unlawful, wrongful and or unreasonable arrest and detention”. The merits were separated from the quantum in terms of Rule 33(4) of the, Uniform Rules of Court. This matter deals with the merits only.    

[6]        Sergeant Tsubayi is one of the police officers who manned the roadblock near the police station. He states that there were five people in the motor vehicle inclusive of the driver. He conducted a search and nothing incriminating could be found. He confirmed that the driver gave three conflicting versions of why he was at Madibogo Pan. He left Bareki with the plaintiff and later he found the plaintiff already locked up in the police cells. He assisted the plaintiff with a cellphone to enable him to make arrangements for transport of his child who was at school.

[7]        This then concluded the defendant’s case and the plaintiff applied for judgment against the defendant. The application was not successful and I made an undertaking that the reasons for its non-success will be provided at a later stage. The reasons appear at paragraphs 19 and 20 of this judgment.

[8]        The plaintiff testified as follows: That on the day in question he was from Mafikeng on his way to Madibogo Pan to check on the grave of his deceased child in order to erect a tombstone. In Mafikeng he gave a lift to three males and a woman. He ended up at a cemetery and thereafter he went to Hans’ shop also known as Seleke’s shop. Upon leaving Madibogo Pan he gave a lift to some people and at Madibogo he was stopped by the police next to the police station. They were ordered to get out of the motor vehicle which was searched. Nothing was found inside the motor vehicle. He was asked the reason for his presence in Madibogo Pan and he informed the police that it was to check the grave of his deceased child together with the child’s mother who was from Thutlwane.

[9]        He was taken to the police station where he was assaulted by Bareki together with the Chinese owner of the shop. He was kicked, slapped and hit with the butt of a gun. He was asked about the people who allegedly committed robbery and he disclaimed knowledge of the people. He stated that he was not the driver of a getaway motor vehicle. He stated that Seleke, the shop owner is the grandfather of his former girlfriend.         

[10]      In its plea, the defendant admitted that the plaintiff was indeed arrested but denied the wrongfulness of the arrest. It expanded on its defence by stating that the plaintiff and his former co-accused were suspected of having committed a schedule 1 offence and the defendant’s functionaries were justified to arrest him without a warrant.

[11]      The defendant bases its defence on the provisions of section 40 (1) (b) of the Criminal Procedure Act s1 of 1977 which provide:

“A peace officer may without warrant arrest any person whom he reasonably suspects of having committed an offence referred to in Schedule1, other than the offence of escaping from lawful arrest”.

[12]      The defendant having raised a ground of justification carried the burden of proof that its functionary was entitled to arrest the plaintiff as he did. This is stated as follows in Minister of Law and Order v Hurley and Another 1986 (3) SA 568 (A) 589 E-F

            “An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.”

[13]      The jurisdictional facts for this defence in terms of s 40(1) (b) are the following: the person effecting the arrest must be a peace officer, he must entertain a suspicion, the suspicion should be that the suspect has committed an offence referred to in schedule 1 and lastly the suspicion must be based on reasonable grounds. See Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA) paragraph 6

[14]      It was not in dispute that constable Bareki was a peace officer, that he suspected the plaintiff of having committed a schedule 1 offence namely robbery. What is disputed is whether constable Bareki himself formed the suspicion and the reasonableness of such suspicion.

[15]      The plaintiff submitted that he was entitled to judgment as the arresting officer did not form his own suspicions that the plaintiff committed the robbery. He relied on the unconfirmed suspicions of others.

[16]      Reverting to the facts at hand I state the following: It is common cause that a robbery took place at Aspida Wholesalers which was committed by four men. Three of whom actually committed the robbery and a third one who was driving a motor vehicle. A description of the motor vehicle was provided to constable Bareki.

[17]      He drove around looking for a motor vehicle fitting the description when he saw a white motor vehicle similar to the one described to him in all respects except the model. What was described to Bareki was a white Toyota Runx without a registration plate at the back. What he saw was a white Toyota Auris without a registration plate at the back.

[18]      Furthermore, Bareki had received information that the motor vehicle he was looking for, had given people lift and was on its way to Madibogo.  Armed with this information, it is not unreasonable to expect Bareki upon seeing this motor vehicle, to form a suspicion that the plaintiff’s motor vehicle was the one described. The plaintiff’s motor vehicle was searched and he proceeded to give contradictory explanations regarding his presence at Madibogo Pan. The plaintiff’s motor vehicle, which fitted the description of a vehicle used in the robbery and his contradictory explanations of his presence at Madibogo Pan in my view, constitute sufficient facts for Bareki to have formed a reasonable suspicion that the plaintiff was involved in the robbery.

[19]      Finally, at was submitted that the plaintiff could have tested his suspicions against the essentialia of the offence of robbery and these essentialia were missing. According to the argument, this would be that the plaintiff was not seen inside the shop, no fire arm was found in his possession, no property taken from the shop was found in his motor vehicle. Nothing whatsoever was found in his possession to link him to the commission of the offence. This is the same argument that was used in the application for judgment at the end of the defendant’s case.

[20]      I disagree. A driver of a getaway car that is used in a robbery is as guilty of robbery as the person who actually through violence or threats of violence, robs the complainant of his property. He acts in concert and associates himself with the actual perpetrator. Any person who acts in concert with the actual perpetrator is as guilty as the actual perpetrator if he associates himself with the acts of the actual perpetrator. This is the well-known doctrine of common purpose which is fully expounded in S v Mgedezi and Others 1989 (1) SA 687 (A) at 705 I – 706C. 

[21]      I have the occasion to listen to the three witnesses who testified in this matter. Both Bareki and Tsubayi made an impression with the way they testified. They had no difficulty to answer questions put to them under sustained cross examination. They gave an explanation where it was required and answered questions in a simple and straight forward manner.  The same cannot be said of the plaintiff. He found it difficult to answer questions in a straight forward manner more especially to questions relating to the contradictory versions that he allegedly gave to Bareki I am of the view that the defendant’s version is more probable than that of the plaintiff.

 [22]     As a result, I have no difficulty in finding that constable Bareki had good and sufficient grounds for suspecting that plaintiff was guilty of robbery. The quality of information and the surrounding circumstances leading to the arrest of the plaintiff justified Bareki’s action.

[23]      In the circumstances, I make the following order:

1.    The plaintiff’s claim is dismissed with costs.

__________________                                                       

D I MATLAPENG                                       

ACTING JUDGE      of the High Court                                                 

North West Division Court, MAHIKENG             

APPEARANCES:

DATE OF HEARING:       20 and 21 November 2018            

DATE OF JUDGMENT:     22 March 2019

FOR THE APPELLANT:     D SMIT

INSTRUCTED BY:             MOTSHABI & MODIBOA ATTORNEYS

FOR THE RESPONDENT: MS L. SEBEKEDI     

INSTRUCTED BY:              THE STATE ATTORNEY

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